Daisy Simpson, R (on the application of) v NHS Mid And South Essex Integrated Care Board

An ICB’s NHS Continuing Healthcare decision involves evaluative judgments about the claimant’s reasonable requirements and the services or facilities appropriate to meet them. Judicial review does not permit the court to substitute its own assessment. The court asks whether the outcome lies outside the range of reasonable responses, whether the reasoning contains a recognised error of approach, or whether the enquiry was insufficient.

Review may be intensive where the consequences are profound, but the court must respect the functional distance between the primary decision-maker and the reviewing court. Care plans and decision documents should be read realistically, without over-zealous or legalistic scrutiny. A decision remains lawful where the ICB has addressed the relevant needs and reached a rational evaluative judgment.

The claimant, an adult eligible for NHS Continuing Healthcare, challenged an ICB decision concerning her package of care. The challenge concerned nursing provision, the functions and hours of a clinical care coordinator, office accommodation, massage therapy, slidesheets, a wheelchair, and travel and hotel costs.

The ICB had assessed needs and provided round-the-clock two-to-one care, a full-time clinical care coordinator, specified equipment and other support. The claimant argued that the decision was unreasonable, illogical, or reached without sufficient enquiry. The central issue was whether the ICB’s evaluative judgments and care plan were lawful on ordinary public law standards.

1. Permission and outcome. Permission for judicial review was granted because the claim crossed the modest threshold of arguability. The substantive claim was dismissed. Permission to appeal was refused, and costs orders were made in the terms stated in the order.
2. Applicable public law approach. The ICB was the primary decision-maker. Its assessment of reasonable requirements, appropriate services and facilities, and what forms part of the health service involved evaluative judgments. The court could not substitute its own view. It asked whether the outcome was outside the range of reasonable responses, whether the reasoning disclosed a recognised error such as illogicality or disregard of an obviously relevant consideration, or whether there had been insufficient reasonable enquiry.
3. The intensity of review was high because of the impact on the claimant and the possibility that a global sum might conceal unmet needs. That intensity did not remove the need to respect the functional distance between the ICB and the court. The decision documents were to be read with regard to their nature and function, avoiding over-zealous or legalistic examination.
4. The ICB had lawfully assessed the need for round-the-clock care and a full-time clinical care coordinator. The coordinator was specifically designed to be a qualified nurse, and the assessment that the identified functions could be discharged within 37.5 hours per week was evaluative and rational. The evidence did not establish that 24-hour nursing care, morphine administration, intravenous fluids or intravenous respiratory medication required a different conclusion.
5. The ICB was entitled to conclude that the coordinator’s role could be performed from the claimant’s home or remotely for some tasks, and that separate office accommodation was not reasonably required. It could also treat massage therapy as not reasonably required to meet an assessed health or care need, direct the claimant to occupational therapy services for slidesheets, and require the wheelchair issue to proceed through NHS wheelchair services before considering interim provision.
6. The decisions concerning hotel and transport costs were also lawful. The court recognised the practical difficulties concerning petrol costs and reimbursement schemes, but held that any further evidence about inaccessible reimbursement or uncovered costs could be considered through the ICB’s review process.

First-instance judicial review in the High Court (Administrative Court). Permission was granted, but the claim was dismissed. Permission to appeal was refused.